ALPOA and Others v Department of Land Affairs and Others (LCC82/04) [2009] ZALCC 1 (13 January 2009)

ALPOA and Others v Department of Land Affairs and Others (LCC82/04) [2009] ZALCC 1 (13 January 2009)

The court found that the 5th respondent failed to provide a reasonable and acceptable explanation for the excessive delay in launching the rescission application. The respondent's conduct, including not acting against the order and not pursuing available remedies timeously, constituted acquiescence, which is a bar to rescission. The court also held that the merits of the original interim interdict were not sufficiently challenged and that the applicants had a prima facie right under the Restitution of Land Rights Act. The application for rescission was therefore dismissed, and costs were awarded against the applicant due to the exceptional circumstances and the conduct of the parties.

Citation
[2009] ZALCC 1
Parties
Applicant: ALPOA & Others; Respondent: Department of Land Affairs; Respondent: Chief Land Claims Commissioner; Respondent: Regional Land Claims Commissioner: Gauteng and North West; Respondent: Alexandra City Council: The Office of the Chief Executive Officer: Eastern Metropolitan Substructure/Region 7; Respondent: Executive Mayor Greater Johannesburg
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
13 January 2009
Case Number
LCC82/04
Procedural Posture
Rescission Application / Judgment
Outcome
Application for rescission dismissed; costs awarded against the applicant.
Judges
F C Bam
Legal Topics
Rescission of Judgment, Interim Interdict, Acquiescence, Urgent Application, Costs Award
Land and Property Civil Procedure Rescission of Judgment Interim Interdict Acquiescence Urgent Application Costs Award

Case Brief

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Parties

ALPOA & Others

Applicant

Department of Land Affairs

Respondent

Chief Land Claims Commissioner

Respondent

Regional Land Claims Commissioner: Gauteng and North West

Respondent

Alexandra City Council: The Office of the Chief Executive Officer: Eastern Metropolitan Substructure/Region 7

Respondent

Executive Mayor Greater Johannesburg

Respondent

Procedural Posture

Rescission Application / Judgment

Legal Issues

  1. 1 Whether the application for rescission of the ex parte interim interdict should be granted.
  2. 2 Whether the delay and conduct of the 5th respondent constitutes acquiescence barring rescission.
  3. 3 Whether the applicants were entitled to the interim interdict granted ex parte.

Ratio Decidendi

The court found that the 5th respondent failed to provide a reasonable and acceptable explanation for the excessive delay in launching the rescission application. The respondent's conduct, including not acting against the order and not pursuing available remedies timeously, constituted acquiescence, which is a bar to rescission. The court also held that the merits of the original interim interdict were not sufficiently challenged and that the applicants had a prima facie right under the Restitution of Land Rights Act. The application for rescission was therefore dismissed, and costs were awarded against the applicant due to the exceptional circumstances and the conduct of the parties.

Court Disposition

Application for rescission dismissed; costs awarded against the applicant.

Orders

  • The application is dismissed.
  • The applicant is to pay the respondents' costs of suit, including those consequent upon the employment of two counsel.